GUARANTY TRUST BANK (GH) LTD -(Plaintiff)
CONTINENTAL COMMODITIES TRADING CO. LTD AND OTHERS - (Defendant)
DATE: 16TH MAY, 2016
SUIT NO: CM/0232/2016
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
This is the first in a Siamese twin like applications for the appointment of a receiver that the applicant has made before the court. This application has been rooted under section 16 of the Mortgages Act, NRCD 96. The applicant seeks for an order for the appointment of John Fiam Coblavie of A. D & Associates as the receiver by collecting rents in respect of a parcel of land situate at the industrial area, Tema which said property was used as security for the loan which defendants have defaulted.
The defendant/respondents have opposed the application not because they do not owe the plaintiff/ applicant but on a claim that the applicant gave its word to them that the applicant will not insist on its legal rights to call in the facilities. And flowing from that it had acted on those promises and assurances. Being an application that was fought on affidavit evidence, the learned counsel for applicant sought to cross examine the deponent, Nabil Moukarzel. The court nonetheless refused that prayer as it deemed that the deposition was not to play much significant role in the grant or refusal of this application. Be that as it may the applicant has denied this deposition in a further supplementary affidavit filed in support of the application by one Miss Ikeduba.
Examining the opposition to this application, counsel for the respondents’ material substance of opposition is to the effect that if the application was to be granted it would further cripple the activities of the defendants as 5th defendant has rented out the property to the 4th defendant. However, counsel claims that as they are all of the same sister companies, the 5th defendant, notwithstanding the tenancy agreement is not collecting rent from the 4th defendant.
As far as I appreciate the law under which the application has been mounted under section 16 of the Mortgages Act, NRCD 96, the claim of the respondent is not a basis for consideration at all in an application of such nature. The respondents admit that there had been a failure of performance of their obligations under the mortgage agreement. The 4th defendant/respondent also do not dispute the fact of the use of the Industrial property as security for the loan. The combined effect of section 16 of the Mortgages Act, NRCD 96 and Order 27 of the High Court (Civil Procedure) Rules, C. I. 47 leaves me in no doubt that the applicant has made out a solid case for the grant of the application for the appointment of a receiver in respect of the property used as security for the repayment of the loans.
Accordingly John Fiam- Coblavie of A.D & Associate is appointed as receiver and the court proceeds to set out the perimeters of his functions:
He is to take possession of the property and collect from the property rent due the 5th defendant including arrears accruing from the mortgaged property. He is to give valid receipts for all rents collected, and to do any other act necessary or proper to manage the property including the making of repairs and improvements. If he needs to undertake such repairs of the property he may need the prior approval of the court.
The rent to be collected by the receiver shall be applied in the following manner:
(a) in discharge of all rents, taxes, rates and other required outgoings affecting the mortgaged property;
(b) in payment of annual sums or, and the interest on all principal sums, due and having priority to the mortgage for which he has been appointed as the receiver;
(c) in payment of his fee or commission, and of the premiums of insurance payable in accordance with the mortgage;
(d) in payment of all interest accruing due in respect of any principal money due under the mortgage;
(e) in or towards the discharge of any principal money due under the mortgage;
The receiver shall render account on monthly basis to the Registrar of the court of all rents collected and receipts issued. Before the commencement of the duties of the receiver, the receiver shall in accordance with Order 27 rule 3 provide an undertaking to the Registrar to discharge his duty faithfully and should he fail he would be called upon to make good that undertaking.
The fees of the Receiver would be fixed at Ghc 1.000.00 per month.